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4 October 2000

PRESIDING JUSTICE SLATERdelivered the opinion of the court:

Defendant/CounterplaintiffCarmen Esparza filed a notice of rejection of an arbitration award in favor ofplaintiff/ counterdefendant Richard Hornburg and plaintiff Susan Hornburg. Thetrial court struck Esparza's rejection due to procedural defects and enteredjudgment on the arbitration award. Esparza now appeals and we affirm in part andreverse in part.

This case arises from amotor vehicle accident that occurred on April 3, 1996, on Naperville Road inBolingbrook, Illinois. According to plaintiffs' complaint, filed by attorneyDouglas Ziech, Richard Hornburg and his wife Susan were injured as a result of acollision with a car driven by Esparza. Esparza filed a counterclaim forcontribution against Richard as driver of the Hornburg vehicle. On October 29,1998, Timothy Rathbun filed a supplemental appearance as attorney for theplaintiffs. On December 2, 1998, attorney Scott Ellefsen filed a generalappearance on behalf of Richard Hornburg as counterdefendant and filed an answerto Esparza's counterclaim. Ellefsen subsequently filed a motion for acontinuance, which was granted, and a motion to dismiss the counterclaim, whichwas later withdrawn.

An arbitration hearingwas held on April 8, 1999. Although not entirely clear, the record indicatesthat four attorneys appeared at the hearing: Douglas Ziech represented Richardand Susan Hornburg; Brian Cichon, a member of Timothy Rathbun's firm, alsoapparently represented the Hornburgs; Scott Ellefsen represented RichardHornburg on Esparza's counterclaim; and Michael Errera represented Esparza. Atthe conclusion of the hearing, the arbitrators ruled in favor of RichardHornburg and against Esparza, awarding $5,000; ruled in favor of Susan Hornburgand against Esparza, awarding $27,000; and ruled in favor of Richard and againstEsparza on Esparza's counterclaim for contribution.

On April 27, 1999,Esparza filed a notice of rejection of the arbitration award, along with anotice of filing, directed to the circuit court of Will County and attorneyDouglas Ziech. No proof of service was filed with the notice of rejection or thenotice of filing. There is no dispute, however, that the notices were receivedby the circuit court and by Ziech.

On May 24, 1999, theparties' attorneys appeared for a post-arbitration status hearing. Ellefsenappeared on behalf of Richard Hornburg as counterdefendant. Ziech was notpresent, but Douglas Mraz, of the Rathbun firm, represented the Hornburgs asplaintiffs. Ellefsen or Mraz, or both, moved to strike Esparza's rejection ofthe arbitration award on the bases that notice had not been given to Ellefsen ascounsel for Richard Hornburg and because Esparza failed to include a certificateof service with the notices that had been filed. The trial court granted themotion to strike on those bases and entered judgment on the arbitration award.Esparza's subsequent post-judgment motion was denied and this appeal followed.

Generally, the decisionto bar a party from rejecting an arbitration award is within the sounddiscretion of the trial court and will not be disturbed on appeal absent anabuse of discretion. See Easter Seal Rehabilitation Center for Will-Grundy Counties, Inc. v. Current Development Corp.,307 Ill. App. 3d 48, 716 N.E.2d 809 (1999); State Farm Insurance Co. v.Kazakova, 299 Ill. App. 3d 1028, 702 N.E.2d 254 (1998). Where, however, theissue involves an interpretation of the Supreme Court Rules, it is a question oflaw subject to de novo review by this court. See State Farm,299 Ill. App. 3d 1028, 702 N.E.2d 254. The rule at issue here states in part:

"Rule 93.Rejection of Award

(a) Rejection ofAward and Request for Trial. Within 30 days after the filing of an award withthe clerk of the court, and upon payment to the clerk of the court of the sum of$200 for awards of $30,000 or less or $500 for awards greater than $30,000, anyparty who was present at the arbitration hearing, either in person or bycounsel, may file withthe clerk a written notice of rejection ofthe award and request to proceed to trial,together with a certificate of service ofsuch notice on all other parties." (Emphasis added.) 166 Ill. 2d R. 93.

We first consider whetherthe trial court properly struck Esparza's rejection of the arbitration award forfailure to file a certificate of service. Supreme Court Rule 93 requires filingof notice of rejection of an arbitration award with the clerk of the court,"together with a certificate of service of such notice on all otherparties." 166 Ill. 2d R. 93(a). When Esparza filed her notice of rejectionand notice of filing on April 27, 1999, no certificate of service was filed. Thequestion is whether this defect was sufficient to warrant striking the notice ofrejection and entering judgment against Esparza. We think not, for two reasons.

First, we note that"Rule 93(a) is only part of a comprehensive package of rules promulgated bythe court to create a system of mandatory arbitration in Illinois. To give fulleffect to the overall legislative scheme, we cannot read the arbitration rulesin a vacuum; we must attempt to harmonize the rules as a unified body oflaw." Lollis v. Chicago TransitAuthority, 238 Ill. App. 3d 583, 587, 606 N.E.2d 479, 481 (1992). SupremeCourt Rule 86, which establishes the mandatory arbitration system, specificallyprovides that the code of civil procedure and the rules of the supreme court areapplicable to arbitration proceedings. 155 Ill. 2d R. 86; see Weisenburn v.Smith, 214 Ill. App. 3d 160, 573 N.E.2d 240 (1991). Therefore, because Rule93 is silent regarding the effect of a party's failure to file a certificate ofservice, we consider Supreme Court Rule 104, which addresses the service andfiling of pleadings and other papers. Much like the certificate of servicerequirement of Rule 93, Rule 104 provides that pleadings, written motions andother papers required to be filed shall include a certificate of counsel orother proof that copies have been served on all parties. 134 Ill. 2d R. 104(b).Unlike Rule 93, however, Rule 104 explains the consequences of noncompliance:

"(d) Failureto Serve Copies. Failure to deliver or serve copies as required by this ruledoes not in any way impair the jurisdiction of the court over the person of anyparty, but the aggrieved party may obtain a copy from the clerk and the courtshall order the offending party to reimburse the aggrieved party for the expensethereof." 134 Ill. 2d R. 104(d).

This provision has beenrelied on in finding that a motion to reconsider lacking a certificate ofservice was not invalid or rendered untimely. See Lajato v. AT&T, Inc.,283 Ill. App. 3d 126, 669 N.E.2d 645 (1996). Similarly, we do not believe thatfailure to provide the certificate of service required by Rule 93 should befatal. "Statutory provisions related to the same subject matter shall beconstrued harmoniously where possible." Weisenburn, 214 Ill. App. 3d at 164, 573 N.E.2d 243. Accordingly, inconstruing Rules 93 and 104 harmoniously, we find that the failure to provide acertificate of service does not invalidate a notice of rejection of anarbitration award under Rule 93.

Second, to the extentthat noncompliance with Rule 93 could merit striking a notice of rejection (see, e.g., Bachmann v.Kent, 293 Ill. App. 3d 1078, 689 N.E.2d 171 (1997) (trial court properlystruck rejection of arbitration award where notice of rejection was signed bynon-attorney); Killoren v. Racich, 260 Ill. App. 3d 197, 632 N.E.2d 621(1994) (notice of rejection was invalid where defendant failed to timely pay$200 fee)), we hold that such an extreme measure was not warranted bydefendant's failure to file a certificate of service. There is no claim thatplaintiffs did not receive actual notice, or that plaintiffs wereprejudiced or even inconvenienced in any way. Under such circumstances, webelieve that entering judgment against the defendant would be an abuse ofdiscretion. See Easter Seal, 307 Ill. App. 3d at 51, 716 N.E.2d at 812.

We now consider the otherbasis upon which the trial court struck Esparza's rejection of the arbitrationaward: failure to give notice to Ellefsen, who was acting as counsel for RichardHornburg in his capacity as counterdefendant. Rule 93 requires that notice ofthe rejection of an arbitration award is to be given to all other"parties." 166 Ill. 2d R. 93. Richard Hornburg contends that Esparzafailed to comply with the rule because only Douglas Ziech was notified of therejection. Although Ziech was Richard's attorney in his capacity as plaintiff,Richard had separate counsel representing him in his role as counterdefendant.Thus, according to Richard, plaintiff Richard and counterdefendant Richard aretwo legally distinct "parties," each of whom was entitled to notice.

Supreme Court Rule 11,which governs the manner of serving papers other than process and complaint,states that if a party is represented by an attorney of record, service is to bemade upon the attorney. 145 Ill. 2d R. 11(a). Rule 11 further provides that"[w]hen more than one attorney appears for a party, service of a copy uponone of them is sufficient." 145 Ill. 2d R. 11(c). However, Rule 11establishes the minimum requirements, and "[p]rofessional courtesyoften requires serving more than one copy on an attorney representing more thanone party and serving more than one attorney for the same party." 145 Ill.2d R. 11, Committee Comments, at xiii. This is not a case where more than oneattorney from the same firm represented a party, or where there was a local orreferring attorney and a lead attorney. In those situations, service on oneattorney would be sufficient. Here, Ziech represented the Hornburgs asplaintiffs and Ellefsen represented Richard Hornburg as a counterdefendant. Eachattorney's role was distinct, and each represented separate interests. Undersuch circumstances, service on one attorney cannot qualify as service on theHornburgs for all purposes.

We recognize, of course,that the committee comments to the Supreme Court Rules are not binding. Wright v. Desate, Inc.,292 Ill. App. 3d 952, 686 N.E.2d 1199 (1997). They are, however, persuasiveauthority that may be used in applying and interpreting an ambiguous statute orrule. People v. Ross, 168 Ill. 2d 347, 659 N.E.2d 1319 (1995); Wright,292 Ill. App. 3d 952, 686 N.E.2d 1199. We believe that Rule 11 is ambiguousconcerning the proper manner of service when a party is represented by more thanone attorney, each of whom represents that party in a separate legal capacity.We find that under such circumstances, both "professional courtesy"and every attorney's inherent duty to act in good faith and maintain highstandards of integrity require service on both attorneys. Accordingly, the trialcourt's ruling striking Esparza's rejection of the arbitration award is affirmedas to Esparza's counterclaim against Richard Hornburg. However, because Ziechwas served with notice of the rejection, we reverse the court's order strikingthe rejection of the arbitration award to plaintiffs, and we remand for furtherproceedings.

For the reasons statedabove, the judgment of the circuit court, which struck Esparza's rejection andentered judgment on the arbitration award, is affirmed as to Esparza'scounterclaim for contribution, but is reversed and remanded as to plaintiffs'claim against Esparza.

Affirmed in part andreversed in part; cause remanded.

HOMER and LYTTON, J.J.,concur.